Citation NR: 9614961
Decision Date: 05/29/96 Archive Date: 06/11/96
DOCKET NO. 91-13 670 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUES
1. Entitlement to service connection for cardiovascular
disability.
2. Entitlement to a compensable rating for bilateral hearing
loss.
3. Entitlement to an increased rating for peptic ulcer
disease with hiatal hernia and gastritis, currently rated as
10 percent disabling.
4. Entitlement to an increased rating for post-traumatic
stress disorder (PTSD), currently rated as 30 percent
disabling.
5. Entitlement to a total rating based on unemployability
due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
INTRODUCTION
The veteran served on active duty from December 1954 to
October 1979.
This matter initially came to the Board of Veterans’ Appeals
(Board) on appeal from an October 1988 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Honolulu, Hawaii. During the course of the appeal, the
veteran moved to New Mexico, and the RO in Albuquerque, New
Mexico, has handled the case since that time.
The Board remanded this case to the RO in August 1991, June
1993 and February 1995. Among the actions requested in the
most recent remand were adjudication of the issue of
entitlement to service connection for hemorrhoids and
readjudication of the issues of entitlement to service
connection for diverticula of the colon, service connection
for migraine headaches with visual interference and
entitlement to an increased rating for varicose veins of the
right leg and thigh. In its June 1995 rating decision the RO
granted service connection for hemorrhoids and diverticulosis
and assigned a noncompensable rating for each disability.
The veteran did not appeal either determination. In the same
rating decision, the RO denied service connection for
migraine headaches with visual interference and entitlement
to an increased rating for varicose veins of the right leg
and thigh. The RO addressed those issues in its June 1995
Supplemental Statement of the Case. The veteran did not
perfect his appeal as to those issues, and they are not
presently before the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has cardiovascular disability
related to service. He points out that an atrioventricular
(AV) block was first noted at his pre-retirement physical
examination. He argues that service connection should be
granted because the condition existed and was made evident on
his service retirement physical exam and was subsequently
confirmed by VA examination. It has also been argued on
behalf of the veteran that he had elevated blood pressure
readings in service and that they and the AV block were
manifestations of cardiovascular disability currently
present. The veteran has offered no specific contentions
with respect to the rating for his service-connected
bilateral hearing loss, but has said that in 1991 when he
questioned a VA audiological examiner as to whether his
hearing was better or worse, the examiner’s statement was
that it was the same, and at least not worse.
The veteran contends that with respect to his peptic ulcer
disease with hiatal hernia and gastritis, the assigned rating
has not taken into account his symptomatic episodes and his
need for daily medication. He argues that his PTSD is
severely disabling and because of it he is unable to cope
with the requirements of managerial work for which he is
otherwise qualified. He, in effect, argues that he is
totally disabled because of his PTSD.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claim for service
connection for cardiovascular disability is not well grounded
and that a compensable rating for bilateral hearing loss is
not warranted. With respect to the veteran’s peptic ulcer
disease with hiatal hernia and gastritis, it is the decision
of the Board that the evidence supports a 20 percent rating
for ulcer disease with hiatal hernia and gastritis for the
period March 1988 to April 1994 but that the preponderance of
the evidence is against a rating in excess of 10 percent for
the period since May 1994. It is also the decision of the
Board that the evidence supports a 100 percent rating for the
veteran’s PTSD. In view of the grant of a 100 percent rating
for PTSD, the claim of entitlement to a total rating based on
unemployability due to service-connected disabilities is
rendered moot.
FINDINGS OF FACT
1. The claim for service connection for cardiovascular
disability is not plausible.
2. The veteran’s bilateral hearing loss is manifested by no
worse than level II hearing impairment in each ear.
3. During the period from March 1988 to April 1994, the
veteran’s ulcer disease with hiatal hernia and gastritis was
manifested primarily by episodes of dyspepsia 3 to 4 times a
year averaging one to two weeks in duration; manifestations
of the disability since May 1994 have been no more than mild.
3. The veteran’s PTSD is characterized primarily by sleep
difficulties, recurrent nightmares, intrusive thoughts,
avoidance behavior, irritability, outbursts of anger and
episodes of depression which together are severely disabling.
4. The veteran has almost 25 years experience as a Naval
officer and a master’s degree in management science. He last
worked in a managerial capacity in 1988; since that time he
has been unemployed or has had no more than marginal
employment.
5. The veteran’s service-connected PTSD precludes him from
securing and maintaining any form of substantially gainful
employment consistent with his education and work experience.
CONCLUSIONS OF LAW
1. The claim for service connection for cardiovascular
disability is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
2. The schedular criteria for a compensable rating for
bilateral hearing loss have not been met. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. § 4.87, Diagnostic Code 6100 (1995).
3. The schedular criteria for a 20 percent rating for ulcer
disease with hiatal hernia and gastritis have been met for
the period March 1988 to April 1994; for the period since May
1994, the schedular criteria for a rating in excess of 10
percent have not been met. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. §§ 4.113, 4.114, Diagnostic Codes 7305, 7307, 7346
(1995).
4. The schedular criteria for a 100 percent rating for PTSD
have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§ 4.132, Diagnostic Code 9411 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Cardiovascular disability
Applicable law provides that service connection may be
granted for disability resulting from disease or injury
incurred or aggravated during service. 38 U.S.C.A. §§ 1110,
1131 (West 1991); 38 C.F.R. § 3.303 (1995). Further, if
hypertension is manifested to a degree of 10 percent within a
year of separation from service, service incurrence may be
presumed. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991);
38 C.F.R. §§ 3.307, 3.309 (1995).
With respect to the claim for service connection for
cardiovascular disability, the Board must, as a preliminary
matter, determine whether the veteran has submitted evidence
of a well-grounded claim. 38 U.S.C.A. § 5107(a). If he has
not, his appeal must fail, and VA is not obligated to assist
the veteran in the development of his claim. 38 U.S.C.A.
§ 5107(a); Grottveit v. Brown, 5 Vet.App. 91 (1993); Tirpak
v. Derwinski, 2 Vet.App. 609 (1992).
The United States Court of Veterans Appeals (Court) has
stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally
places an initial burden on a claimant to produce evidence
that the claim is well grounded. See Grivois v. Brown, 6
Vet.App. 136 (1994); Grottveit at 92; Tirpak at 610-11. The
Court has stated that the quality and quantity of evidence
required to meet this statutory burden depends upon the issue
presented by the claim. Grottveit at 92-93. Where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is plausible or possible is required. Id.
Further, in order for a claim to be considered plausible, and
therefore well grounded, there must be evidence of both a
current disability and evidence of relationship between that
disability and an injury or disease incurred in service or
some other manifestation of the disability during service.
Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Brammer v.
Derwinski, 3 Vet.App. 223, 225 (1992); Cuevas v. Prinicpi, 3
Vet. App. 542, 543 (1992).
Service medical records show that at his December 1954
physical examination for active duty the veteran’s blood
pressure was 122/74 and his heart was evaluated as normal.
At physical examinations in December 1955, November 1956,
November 1957 and September 1958, the veteran’s heart was
evaluated as normal and blood pressure readings while sitting
were 110/70, 120/68, 110/74, and 120/70 respectively. At a
December 1959 physical examination, sitting, recumbent and
standing blood pressure readings were 136/84, 132/80 and
136/88, respectively, and the heart was evaluated as normal.
A June 1961 electrocardiogram (EKG) was evaluated as normal.
A consultation report from a navy hospital shows that when
seen in January 1963 with complaints of a one-year history of
left upper quadrant discomfort, the veteran’s blood pressure
was 155/95. His heart was evaluated as normal, and the
impression after examination was rule out hiatus hernia,
peptic ulcer. At his annual physical examination in May
1963, the veteran’s heart was evaluated as normal, and blood
pressure readings were 120/78 sitting, 114/70 recumbent, and
106/74 standing. Outpatient records show that when seen with
complaints of “gas” pain and left upper quadrant burning
sensations in October 1970. At that time, the veteran’s
blood pressure was 120/80. After examination, the impression
was possible peptic ulcer. A November 1970 EKG was within
normal limits.
On an undated Officer Physical Examination Questionnaire,
completed sometime between December 1973 and December 1974,
the veteran stated that in the period between his last
physical examination and the current examination he had had
frequent high blood pressure. At an August 1974 annual
physical examination, the veteran’s blood pressure was
134/86, and his heart was evaluated as normal. An August
1974 EKG was within normal limits.
A March 1976 outpatient chronological record shows that the
veteran was seen with left upper quadrant “gas” pains and
frequent substernal discomfort. The physician noted that it
was probably due to hiatal hernia. At that time the
veteran’s blood pressure was 140/100. In an April 1976 EKG
report, the physician stated there was poor R progression in
precordial leads and that apparent change since the EKG of
1974 might be due to electrode positions. A May 1976 entry
in the outpatient chronological record was 1972 - increased
blood pressure, smokes 1 - 1½ packages of cigarettes per day.
On an EKG report on the same date, the veteran’s blood
pressure was noted to be 130/86. The physician’s
interpretation of the EKG was “Low voltage. Within normal
limits.” On a January 1977 Officer Physical Examination
Questionnaire, the veteran reported that he had seldom had
high blood pressure since his last physical examination.
At a January 1978 physical examination, the veteran’s heart
was evaluated as normal, and his blood pressure was 130/82.
An EKG later that month was within normal limits. An EKG
record dated in early October 1979 shows that the veteran’s
blood pressure at that time was 136/96. The physician
reported that the PR interval was 0.24 seconds and stated
there was first degree (1 ) AV block. On an Officer Physical
Examination Questionnaire dated 2 days after the EKG, the
veteran reported that since his last physical examination he
had seldom had high blood pressure. At the veteran’s
retirement physical examination in late October 1979, his
blood pressure was 130/80, and his heart was evaluated as
normal. It was noted that EKG had identified 1 AV block and
that it was asymptomatic.
Post-service medical records show that the veteran was seen
in the Straub Clinic & Hospital emergency room in March 1982
with complaints of flashing and blurred vision. His blood
pressure was 130/80, and he gave no history of hypertension.
On examination, the heart was not enlarged and rhythm was
regular. The physician found no gallop, murmur or extra
sound. After examination, the assessment was scintillating
scotoma, etiology uncertain. When seen in May 1982 with
complaints of abdominal pain, the veteran’s blood pressure
was 130/92, and heart sounds were normal with no murmur. The
impression was gastrointestinal distress. When checked a
week later, the veteran’s blood pressure was 122/88. In
March 1983, the veteran was seen following a 20-minute
episode of peripheral vision loss in his right eye. His
blood pressure was 146/78. The veteran reported that he had
an AV block and that he was borderline hypertensive. After
initial examination, the veteran was referred to the
neurology clinic where he was seen later the same day. When
seen in the neurology clinic, his blood pressure was 118/80.
When he returned to the neurology clinic approximately a week
later, his blood pressure was 122/82. The neurologist’s
impression was migraine.
Straub Clinic & Hospital clinical notes show that the veteran
was seen during the period March 1984 to October 1984 with
complaints of recurrent abdominal pain and after tests was
diagnosed as having ulcer disease. Blood pressure readings
recorded in clinical notes during that period ranged from
110/72 to 152/54. When seen in the neurology clinic in March
1985 with complaints of recent blurred vision, the veteran’s
blood pressure was 144/102. The physician prescribed
Inderal. At a follow-up visit the next week, the veteran’s
blood pressure was noted to be improved at 140/90, and the
Inderal was continued. Additional clinical notes dated
through March 1988 show that the veteran continued to receive
treatment primarily for his recurrent abdominal pain.
At a May 1988 VA physical examination, the veteran reported
that an AV block had been noted on his retirement physical
examination. On examination, the initial blood pressure
reading was 170/100; when repeated, it was 150/98. The
clinical diagnoses included hypertension and 1 AV block. On
the EKG report of the same date, blood pressure readings were
noted to be 156/98 with a small cuff and 146/96 with a large
cuff. The EKG showed normal sinus rhythm with 1 AV block,
and the PR interval was 232 milliseconds.
At an October 1989 VA examination, the veteran reported that
he had had no apparent symptoms, but an AV block had been
discovered on his October 1979 retirement examination. The
veteran reported that in the past his blood pressure had run
at 160/100 but that it came down and he had never had any
anti-hypertensive medication. At the VA examination, the
veteran’s blood pressure was 124/80. The physician stated
that he heard no heart murmurs, and there were no pulse
irregularities. He also reported that the veteran’s eye
grounds showed no changes in the retinal vessels,
specifically no AV nicking. The clinical impression was
history of an AV block discovered on retirement physical,
apparently asymptomatic, history of transient hypertension in
the past. An EKG showed sinus bradycardia with 1 AV block;
the PR interval was 316 milliseconds. At an October 1991 VA
examination, the veteran’s blood pressure was 160/90 sitting,
159/90 supine and 160/90 standing. The physician noted that
she discussed the veteran’s hypertension with him, and the
veteran attributed it partly to anxiety. The physician
recommended that the veteran contact a physician in his
community for regular monitoring of his blood pressure.
A VA outpatient record from an ear, nose and throat clinic
shows that when evaluated for clearance for hearing aid
evaluation in January 1990, the veteran’s blood pressure was
162/94 and when repeated, was 144/94. The assessment
included elevated blood pressure.
A July 1993 VA EKG showed normal sinus rhythm with 1 AV
block. The PR interval was 260 milliseconds. Within a day
following the EKG, the veteran was examined by a VA
cardiologist who noted that relevant to cardiovascular
disease, the veteran had essential hypertension and a history
of 1 AV block on an EKG on discharge from the service in
1979. The physician noted that the veteran also had this
with an otherwise normal EKG in October 1988 and also had
this on his current EKG with PR interval of .26 seconds and
otherwise normal results. The physician stated there was no
known way of relating this to military service. At the July
1993 clinical examination, the veteran denied symptoms
referable to heart block or any other type of heart disease,
specifically, no dizzy spells, syncope, presyncope,
palpitations, chest discomfort or untoward or unusual dyspnea
on exertion. Cardiac examination was normal with soft S1.
The veteran’s blood pressure was 140/80. The physician
diagnosed the veteran as having 1 AV block (normal variant).
The veteran has argued that the 1 AV block shown on the EKG
at the time of his retirement examination was an abnormality
not previously present and that it has been confirmed at
post-service VA examinations thereby warranting service
connection. It has also been asserted on the veteran’s
behalf that blood pressure readings in service were elevated
thereby implicitly presenting the argument that blood
pressure readings in service indicated the presence of
hypertension.
Review of the record shows many recordings of blood pressure
readings in service, and on various questionnaires the
veteran reported that he had had high blood pressure. There
is, however, no medical evidence showing that hypertension
was present in service or that the hypertension diagnosed
many years after service has been related to service. Other
than the veteran’s own assertions, there is no evidence in
support of the claim for service connection for
cardiovascular disability as it relates to hypertension, and
the Court has held that lay persons are not competent to
offer medical opinions. Espiritu v. Derwinski, 2 Vet.App.
492, 494 (1992). Because the facts asserted are beyond the
competence of the person making the assertions, this is an
exception to the rule that evidentiary assertions must be
accepted as true for the purpose of determining whether a
claim is well grounded. King v. Brown, 5 Vet.App. 19, 21
(1993). Thus, the veteran’s lay assertions as to medical
diagnoses and medical causation cannot constitute evidence to
render his claim well grounded under 38 U.S.C.A. § 5107(a).
Grottviet at 93.
As was noted earlier, in order for service incurrence of
hypertension to be presumed, it must have been manifest to a
degree of 10 percent or more within one year of the veteran’s
separation from service. 38 U.S.C.A. §§ 1101, 1112, 1137;
38 C.F.R. §§ 3.307, 3.309. There is, however, no competent
evidence of the presence of hypertension until many years
after service, and the claim is not well-grounded on a
presumptive basis.
As to the aspect of the claim related to 1 AV block, careful
review of the record outlined above shows that no examiner
has stated that the veteran’s 1 AV block is a manifestation
of cardiovascular disease or injury. Further, the
cardiologist who performed the July 1993 VA examination
stated specifically that the currently shown 1 AV block is a
normal variant and that there is no known way of relating it
to the veteran’s service. He also noted that the veteran
denied symptoms referable to heart block or any other type of
heart disease. For the reasons outlined earlier, in the
absence of competent medical evidence relating the veteran’s
current condition to service, the claim for service
connection for cardiovascular disability as it relates to 1
AV block is not well grounded. Further, the Board notes that
with respect to AV blocks, simple delayed PR conduction time,
in the absence of other evidence of cardiac disease, is not a
disability. 38 C.F.R. § 4.104, Diagnostic Code 7015, Note 1
(1995). Here, recent cardiology examination was normal, the
veteran denied symptoms of cardiac disease and the only
notable finding on EKG was 1 AV block with PR interval of
.26 seconds. Thus, the veteran’s current AV block is not a
disability under VA regulations, and that aspect of the
claim, when viewed alone, is without legal merit. See
Sabonis v. Brown, 6 Vet.App. 426 (1994).
As detailed above, the Board has denied service connection
for cardiovascular disability on grounds different from that
of the RO which denied the claim on the merits. The veteran
has not, however, been prejudiced by the Board’s decision.
This is because in assuming that the claim was well-grounded,
the RO accorded the veteran greater consideration than the
claim in fact warranted under the circumstances. Bernard v.
Brown, 4 Vet.App. 384, 392-94 (1993). To remand this issue
for consideration of whether the claim is well grounded would
be pointless and, in light of the law cited above, would not
result in a determination favorable to the veteran. VA
O.G.C. Prec. Op. 16-92. 57 Fed.Reg. 49,747 (1992).
Bilateral hearing loss
The veteran contends, in effect, that his hearing has not
improved and that his bilateral hearing loss warrants a
higher rating than the noncompensable rating now assigned.
This claim is well grounded within the meaning of 38 U.S.C.A.
§ 5107(a) in that it is plausible. The Board is satisfied
that all relevant facts have been properly developed and that
no further assistance to the veteran is required to comply
with 38 U.S.C.A. § 5107(a).
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (1995). The Board
attempts to determine the extent to which the veteran’s
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1995).
In accordance with 38 C.F.R. §§ 4.1, 4.2 (1995) and Schafrath
v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed
the service medical records and all other evidence or record
pertaining to the history of the veteran’s bilateral hearing
loss. The Board has found nothing in the historical record
which would lead it to conclude that the current evidence of
record is not adequate for rating purposes. Moreover, the
Board is of the opinion that this matter presents no
evidentiary considerations which would warrant a detailed
exposition of the remote clinical history pertaining to the
disability.
Briefly, the veteran’s service medical records show that at
his December 1954 physical examination for active duty,
whispered and spoken voice tests were 15/15 in both ears.
The records show that as early as 1974 he was diagnosed as
having bilateral hearing loss and that at his retirement
examination in October 1979 he was noted to have noise-
induced bilateral high frequency hearing loss. The veteran
filed his original claim for service connection for bilateral
hearing loss in March 1988.
At a June 1988 VA fee basis audiological examination, pure
tone thresholds were 10, 60, 70 and 75 decibels in the right
ear for frequencies 1,000, 2,000, 3,000 and 4,000 hertz,
respectively. The average threshold level for those
frequencies was 54 decibels. For the left ear, the threshold
levels were 10, 60, 70 and 75 decibels at the same
frequencies, again with an average threshold level of 54
decibels. Speech recognition was 70 percent for the right
ear and 72 percent for the left ear.
In its October 1988 rating decision, the Honolulu RO granted
service connection for bilateral hearing loss and assigned a
20 percent rating for the disability.
When seen at a VA ear, nose and throat clinic in January
1990, it was noted that the veteran wore bilateral hearing
aids. After examination, he was cleared for a scheduled
hearing aid evaluation.
The veteran underwent a VA audiological examination in
October 1991. On the summary report of examination for
organic hearing loss, it was reported that pure tone air
conduction thresholds in the right ear were 10, 60, 75 and 80
decibels at 1,000, 2,000, 3,000 and 4,000 hertz,
respectively, with an average threshold level of 56 decibels.
For the left ear, the threshold levels were 10, 60, 70 and 70
decibels at the same frequencies, with an average threshold
level of 53 decibels. Speech recognition was 88 percent for
the right ear and 90 percent for the left ear.
Based on the October 1991 examination results, the
Albuquerque RO, in a March 1992 rating decision, proposed
reduction of the rating for the veteran’s bilateral hearing
loss disability from 20 percent to a noncompensable rating.
The veteran disagreed with the proposal which was implemented
in a June 1992 rating decision. Later correspondence from
the veteran’s representative has been construed as his Notice
of Disagreement with the noncompensable rating resulting from
the reduction.
At a July 1993 VA audiological evaluation, air conduction
thresholds in the right ear were 10, 60, 75 and 80 decibels
at 1,000, 2,000, 3,000 and 4,000 hertz, respectively, with a
puretone average of 56 decibels. For the left ear, the air
conduction thresholds were 10, 60, 70 and 70 decibels at the
same frequencies, with a puretone average of 53 decibels.
Speech recognition was 94 percent for the right ear and 92
percent for the left ear.
Under the Rating Schedule, which includes the schedular
criteria for the evaluation of hearing loss, the
determination of the degree of impairment is based on the
results of controlled speech discrimination tests together
with an average of hearing threshold levels as measured by
pure tone audiometry. 38 C.F.R. § 4.85. The frequencies
considered for rating purposes are 1,000, 2,000, 3,000 and
4,000 hertz. VA regulations - Title 38 Code of Federal
Regulations Schedule for Rating Disabilities - Transmittal
Sheet 23 (Oct. 22, 1987); See 52 Fed.Reg. 40,439 (Dec. 7,
1987). The Rating Schedule establishes 11 levels of hearing
impairment, with least impairment at level I, to greatest
impairment at level XI. 38 C.F.R. § 4.87, Table VI.
As outlined above, based on June 1988 audiological test
results, the average pure air tone threshold was 54 decibels
in each ear, and the speech recognition score was 70 percent
for the right ear and 72 percent for the left ear. Those
findings correspond to level V in each ear. When both ears
have level V hearing impairment, the Rating Schedule
specifies that a 20 percent rating be assigned, and it was on
this basis that the original rating was awarded. 38 C.F.R.
§ 4.87, Table VII, Diagnostic Code 6102.
At the October 1991 VA audiological examination, the right
ear average pure air tone threshold was 56 decibels, and in
the left ear the average threshold level was 53 decibels,
showing somewhat increased hearing loss in each ear as
compared to the June 1988 test results. The speech
recognition scores showed improvement from the June 1988
results; the speech recognition score was 88 percent for the
right ear and 90 percent for the left ear. The October 1991
findings as to average air tone thresholds and speech
discrimination correspond to the Rating Schedule level II in
each ear. When both ears have level II hearing impairment,
the Rating Schedule specifies that a noncompensable rating be
assigned. 38 C.F.R. § 4.87, Table VII, Diagnostic Code 6100.
The Board notes that the more recent July 1993 test results
show the same average air tone thresholds as were found in
October 1991 with somewhat higher speech recognition scores
of 94 percent for the right ear and 92 percent for the left
ear. The combination of these average thresholds and
discrimination scores corresponds to level I impairment in
each ear, again warranting a noncompensable rating. Id.
Under the circumstances, the preponderance of the evidence is
against entitlement to a rating in excess of the currently
assigned noncompensable rating.
In conjunction with rating assignments for hearing loss
disability, it should be noted that the Rating Schedule makes
allowance for hearing improvement by hearing aids. See
38 C.F.R. § 4.86. Further, the Board notes that the Court
has upheld the propriety of assigning a noncompensable rating
for service-connected hearing loss by means of a mechanical
application of the Rating Schedule to the numeric
designations assigned after audiometric evaluation.
Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992).
Peptic ulcer disease with hiatal hernia and gastritis
The veteran’s increased rating claim is well-grounded within
the meaning of 38 U.S.C.A. § 5107(a), in that he has alleged
that his peptic ulcer disease with hiatal hernia and
gastritis is more disabling than is reflected by the
currently assigned rating. Further, the Board is of the
opinion that all relevant facts have been properly developed
with respect to this issue and that no further assistance to
the veteran is required to comply with 38 U.S.C.A. § 5107(a).
Briefly, the veteran’s service medical records show that in
1963 he was seen with complaints of recurrent epigastric pain
and almost continuous belching. The clinical impression was
rule out hiatus hernia/peptic ulcer. An upper
gastrointestinal series was negative. In 1965 the veteran
was seen with complaints of stomach cramps and epigastric
discomfort described as “gas.” He gave a 4-year history of
similar complaints. Record entries show that in October 1970
he was treated for an episode including gas pains and a left
upper quadrant burning sensation, which he said had been
present off and on since 1961 or 1962. An upper
gastrointestinal series reportedly showed bulb deformity and
a probable superior duodenal bulb crater. The veteran was
continued on antacids. An upper gastrointestinal series in
February 1971 was reportedly within normal limits. The
veteran was seen with recurring complaints, and antacids were
continued. In November 1974 an upper gastrointestinal series
demonstrated a sliding hiatal hernia without reflux.
Complaints continued. The record shows that in October 1978
the veteran complained of an episode of irregular sharp, non-
radiating epigastric pain accompanied by and relieved by
eructation. After examination and review of laboratory
tests, the impression included gastritis, reflux esophagitis
clinically.
Clinical notes from Straub Clinic & Hospital show that in May
1982 the veteran was seen with complaints of abdominal pain
and nausea for which he had been taking Maalox. He gave a
history of such problems since approximately 1964. The
initial impression was reported as gastrointestinal distress.
After gallbladder X-rays were negative, the impression was
reported as probable anxiety reaction. Tagamet was
prescribed.
In March 1984, the veteran was seen in the Straub Clinic
gastroenterology department with complaints of diaphoresis
and “tremendous” gas pains. He gave a history of recurrent
episodes of epigastric discomfort over more than 20 years.
After examination, the impression was acid peptic diathesis,
probable ulcer disease. Zantac and Xanax were prescribed.
On endoscopy the veteran was found to have severe duodenal
ulcer disease with gastric outlet obstruction and
esophagitis. Zantac was continued, and symptoms improved.
In September 1986, the veteran was admitted to Straub
Hospital for a syncopal episode and melena. Endoscopy showed
evidence for an acute pyloric channel ulcer with pyloric
channel stenosis and duodenal bulbar deformity. Mild
gastritis, confirmed by biopsy, was seen within the gastric
body. After treatment, the veteran was discharged in October
1986 in improved condition on Zantac therapy and antacids.
Straub Clinic records show the veteran continued to be seen
until March 1988 reporting minimal abdominal pain with
continued use of Zantac.
At a May 1988 VA examination, the veteran reported a history
of ulcer symptoms dating to before 1974, ulcer diagnosis in
1984 and hemorrhage in 1986. He complained of recurrent
stomach pains and bleeding. On examination, the physician
noted epigastric tenderness and diagnosed the veteran as
having peptic ulcer disease by history.
In its October 1988 rating decision, the Honolulu RO granted
service connection for hiatal hernia with gastric reflux and
assigned a noncompensable rating effective from March 1988,
the date of receipt of the veteran’s claim. The veteran
disagreed with the decision arguing that his ulcer condition
should have been included as part of his service-connected
disability.
Clinical records from Alfred W. Pinkerton, M.D., of Santa Fe,
New Mexico, show that he started seeing the veteran in
October 1988 and prescribed Zantac. In a July 1989 letter to
the Chief of the VA Medical Administration Service, Veterans
Hospital in Albuquerque, Dr. Pinkerton stated that he was
currently treating the veteran for hiatus hernia and peptic
ulcer disease. He stated it was his opinion that the veteran
should be on continuous Zantac and that he anticipated having
to see the veteran no more than 2 to 3 times a year.
At a September 1989 VA examination, the veteran complained of
periodic stomach pain, excessive gas and nausea. He reported
that since his previous VA exam, he had twice seen a
physician for his ulcer symptoms and that he continued to
take Zantac which controlled his symptoms pretty well. A VA
upper gastrointestinal series in September 1989 showed the
duodenal bulb to be deformed. The radiologist sated that
this was compatible with previous peptic ulcer disease.
In a December 1989 rating decision, the Albuquerque RO
described the veteran’s service-connected disability as
peptic ulcer disease with hiatal hernia and gastritis and
assigned a 10 percent rating effective from March 1988. The
veteran continued his appeal, arguing that he met the
criteria for a 20 percent rating under the code for duodenal
ulcer.
At a hearing at the Albuquerque RO in May 1990, the veteran
testified that he continued to take Zantac for epigastric
problems, and pointed out that even when taking that
medication, he had had the epigastric hemorrhage in 1986.
At an October 1991 VA examination, the veteran reported that
in 1990 he began receiving VA care for his ulcer symptoms and
was given Cimetidine. He stated that this did not work as
well as Zantac and gave him diarrhea, so he stopped taking it
in December 1990. He reported that he had had about three
episodes of dyspepsia since that time, but no serious
episodes of gastrointestinal bleeding. The impression
following an October 1991 VA upper gastrointestinal series
was duodenal ulcer disease including a post bulbar ulcer. It
was noted that the duodenum demonstrated severe deformity of
the bulb with a bulbar and post bulbar ulcer visualized. In
correspondence received from the veteran in May 1992, he
reported that in February 1992 VA had authorized Zantac for
him.
At a July 1993 VA examination, the veteran complained of mid-
epigastric pain and a bloated feeling. The physician noted
that the veteran was not anemic and reported neither periodic
vomiting, recurrent hematemesis nor melena. The veteran
reported episodes of mid-epigastric pain of one to two weeks’
duration occurring four to five times a year. On
examination, there was mid-epigastric tenderness to
palpation. The impression following an August 1993 VA
esophagogastroduodenoscopy with biopsy was hiatal hernia,
mild duodenitis with history of post-bulbar ulceration, now
healed, and rule out helicobacter pylori. It was noted on
the clinical examination report that the antral gastric
biopsy showed active gastritis and helicobacter pylori
infection commonly associated with recurrent duodenal ulcers.
Continuation of Zantac was recommended.
VA outpatient records show that in October 1993 the veteran
reported that he was doing well on Zantac, but that he had to
increase the amount he took for periods of up to six weeks
when his symptoms were exacerbated. When seen in April 1994,
he complained of increased symptoms stating he had increased
his Zantac to twice a day during the past month but still had
continuing heartburn. The veteran asked about antibiotic
treatment for ulcers, and a 2-week course of antibiotics was
prescribed for his helicobacter pylori. When seen in October
1994, the veteran reported that he felt fine and since his
antibiotic treatment he had had no abdominal discomfort, no
blood in his stool and had noted no side effects from the
treatment. No abnormality was found on clinical abdominal
examination.
At an April 1995 VA examination, it was noted that with
regard to his ulcer disease and helicobacter gastritis, the
veteran underwent eradicative antibiotic therapy in 1994 and
since that time had had no recurrence of dyspepsia,
heartburn, epigastric pain or gastrointestinal bleeding and
had required no H2 blockers or antacids. He denied any
significant gastroesophageal reflux symptomatology. The
physician noted that the veteran’s current condition did not
rule out the potential for recurrence of ulcers in the
future, though he currently had no evidence of active ulcer
disease and his helicobacter pylori had presumably been
eradicated. He also noted that there was no objective
evidence of the eradication such as serology or repeat
biopsy.
The Rating Schedule includes diagnostic codes for duodenal
ulcer, gastritis and hiatal hernia. It is, however, pointed
out within the Rating Schedule that such diseases of the
digestive system, while differing in the site of pathology,
produce a common disability picture characterized in the main
by varying degrees of abdominal distress or pain, anemia and
disturbances in nutrition. 38 C.F.R. § 4.113. It is further
noted that such diseases of the digestive system do not lend
themselves to distinct and separate disability evaluations
without violating the fundamental principles relating to
pyramiding as outlined in 38 C.F.R. § 4.14. Id. Under the
provisions of 38 C.F.R. § 4.14, the evaluation of the same
disability under various diagnosis is to be avoided. To that
end, ratings under diagnostic codes for the digestive system,
including those for duodenal ulcer, gastritis and hiatal
hernia, will not be combined with each other. 38 C.F.R.
§ 4.114. Rather, a single evaluation will be assigned under
the diagnostic code which reflects the predominant disability
picture, with elevation to the next higher evaluation where
the severity of the overall disability warrants such
elevation. Id.
Under the Rating Schedule, a 10 percent rating is warranted
for a mild duodenal ulcer with recurring symptoms once or
twice yearly. 38 C.F.R. § 4.114, Diagnostic Code 7305. A 20
percent rating requires a moderate duodenal ulcer with
recurring episodes of severe symptoms two or three times a
year averaging 10 days in duration or with continuous
moderate manifestations. Id. A 40 percent rating requires a
moderately severe duodenal ulcer with less than severe
symptoms but with impairment of health manifested by anemia
and weight loss or recurrent incapacitating episodes
averaging 10 days or more in duration at least four or more
times a year. Id. A 60 percent rating requires a severe
duodenal ulcer with pain which is only partially relieved by
standard ulcer therapy, periodic vomiting, recurrent
hematemesis or melena, with manifestations of anemia and
weight loss productive of definite impairment of health. Id.
The Rating Schedule provides that a 10 percent rating is
warranted for chronic hypertrophic gastritis, identified by
gastroscope, with small nodular lesions and symptoms.
38 C.F.R. § 4.114, Diagnostic Code 7307. A 30 percent rating
for chronic gastritis requires multiple small eroded or
ulcerated areas and symptoms, while a 60 percent rating
requires severe hemorrhages or large ulcerated or eroded
areas. Id.
Under the Rating Schedule, a 10 percent rating is warranted
for a hiatal hernia with two or more symptoms required for a
30 percent rating, but of lesser severity than is required
for that rating. A 30 percent rating requires persistently
recurrent epigastric distress with dysphagia, pyrosis, and
regurgitation accompanied by substernal or arm or shoulder
pain, all of which are productive of a considerable
impairment of health. 38 C.F.R. § 4.114, Diagnostic Code
7346. A 60 percent rating requires symptoms of pain,
vomiting, material weight loss and hematemesis or melena with
moderate anemia or other symptom combinations productive of
severe impairment of health. Id.
On comparison of the veteran’s symptoms with the requirements
of the various diagnostic codes, it is the Board’s judgment
that the veteran’s service-connected disability of the
digestive system is appropriately rated under the code for
duodenal ulcer, Diagnostic Code 7305. In this regard, the
continuing lesions or ulcerated areas required for ratings
under Diagnostic Code 7307 for chronic gastritis have not
been demonstrated. Although the veteran has complained of
pyrosis which is among the symptoms that may be considered
along with epigastric distress in rating digestive system
disability under the code for hiatal hernia, Diagnostic Code
7346, the medical evidence has not shown that the veteran has
complained of or has been found to have dysphagia,
regurgitation or substernal or arm or shoulder pain. At
least some of these are required for compensable ratings
under Diagnostic Code 7346.
Review of the record shows that during the period from March
1988 to April 1994, the veteran’s ulcer disease with hiatal
hernia and gastritis was manifested primarily by episodes of
dyspepsia three to four times a year averaging one to two
weeks in duration. Although there is no firm basis upon
which to characterize the veteran’s symptoms as severe during
these episodes, there were times during which increased doses
of medication apparently did not relieve his distress. This
situation most closely approximates the requirements for a 20
percent rating under Diagnostic Code 7305 for duodenal
ulcers. The evidence does not, however, support a 40 percent
rating under that code as the veteran’s symptomatic episodes
have not been shown to have been incapacitating and neither
anemia nor weight loss as indicators of impairment of health
has been shown. Further, for this period, the severity of
the overall disability is described by the criteria for a 20
percent rating under Diagnostic Code 7305 and elevation to
the next higher rating cannot be justified as there are no
symptoms attributable to the hiatal hernia or gastritis that
are not encompassed by those considered in the 20 percent
rating under Diagnostic Code 7305.
The evidence of record indicates that subsequent to
antibiotic treatment in April 1994 the veteran’s ulcer
symptoms subsided and that since then he has not required
medication including antacids. At the April 1995 VA
examination, the physician noted that the veteran’s ulcer
disease was currently inactive and that the veteran denied
any significant gastroesophageal reflux symptoms, but
cautioned that the current situation did not rule out the
potential for recurrent ulcers. Under these circumstances,
the Board again considers Diagnostic Code 7305 as the most
appropriate. However, the Board finds that the veteran’s
service-connected digestive system disability can be
characterized as no more than mild beginning in May 1994 and
therefore affirms the 10 percent rating currently assigned.
PTSD
The veteran’s claim for an increased rating for PTSD is well-
grounded within the meaning of 38 U.S.C.A. § 5107(a), in that
he has alleged that his PTSD is more disabling than is
reflected by the currently assigned rating. Further, the
Board is of the opinion that all relevant facts have been
properly developed with respect to this issue and that no
further assistance to the veteran is required to comply with
38 U.S.C.A. § 5107(a).
The veteran’s original claim for service connection for PTSD
was received in March 1988. In its October 1988 rating
decision, the Honolulu RO granted service connection for PTSD
and assigned a 10 percent rating. The veteran appealed the
10 percent rating, and in a June 1995 rating decision, the
Albuquerque RO assigned a 30 percent rating effective from
March 1988, the date of the veteran’s claim. The veteran has
continued his appeal.
In a March 1988 memorandum, a Vietnam Vet Center Readjustment
Counseling Therapist reported that the veteran’s Vietnam
service included multiple tours between 1967 and 1975 and
that the veteran’s awards included the Combat Action Ribbon
and the Legion of Merit with Combat “V.” The therapist
stated that the veteran had received treatment at the center
from 1984 to 1986 and that his symptoms consistent with PTSD
included recurring nightmares, intrusive recollections of
combat, a significantly reduced capacity for social and
vocational involvement, feelings of alienation from his peer
group, survivor guilt, depression, anxiety manifested by
hyperalertness and increased vigilance, problems with memory
and concentration and difficulty controlling his anger.
The report of a May 1988 VA fee-basis Social Survey shows
that the veteran reported that in about 1975 while still in
service he became irritable with supervisors and subordinates
and felt he was going “berserk” and in 1979 decided to
retire. He tried various jobs after service, including
consulting work. He said that in that work he began having
angry outbursts with customers, ruining his business and
contacts. In this most recent job he managed contracts with
the Navy for a private consulting firm, but said he did no
real work and felt he was about to be fired. While
describing his Vietnam experiences, the veteran broke down in
tears stating that he felt unworthy and guilty. He stated he
avoided almost all social situations and isolated himself in
a back room in his home to read. He reported that he could
not sleep through the night or enjoy pleasurable activities.
The veteran appeared to be seriously impaired and appeared to
be at a point where he could not continue to hide underlying
feelings of rage and hopelessness. He admitted to fleeting
suicidal thoughts.
At the May 1988 VA general medical examination, the physician
noted that when he discussed events during and after the
Navy, the veteran was occasionally tearful, anxious and
tremulous. The physician stated the veteran appeared very
depressed and diagnosed him as having a psychiatric disorder.
He also stated that he strongly recommended that the veteran
seek psychiatric help. The report of a June 1988 VA
psychiatric examination shows that the veteran reported sleep
disturbances, being startled by loud noises and the need for
solitude and atonement. The veteran stated that because of
his emotions he could not deal with people as he had formerly
and was no longer able to manage or lead. The veteran’s mood
was anxious and his insight and judgment were fair. After
examination, the psychiatrist diagnosed the veteran as having
active PTSD and noted major impairment in work and family
relations. The psychiatrist commented that although the
veteran appeared to have managed reasonably well since his
retirement, his condition was very fragile and he had
probably performed marginally in his post retirement
employment.
On a VA Form 21-2545 dated in September 1989, the veteran
reported he had last worked in July 1988 in management for
Unified Industries and had left his job because of stress.
At an October 1989 VA psychiatric examination, the veteran
reported that he had moved from Hawaii to New Mexico to
escape reminders of Vietnam triggered by the climate and
landscape of Hawaii. He also stated that he felt guilty
almost constantly, and unworthy. He reported difficulty
relating to people, even his wife, and stated that he had no
friends currently, but in the past had been very social. He
reported feelings of anger, nightmares three or four times a
week, inability to sleep more than about 2 hours a night and
frequent intrusive thoughts about the Vietnam war. The
veteran reported he was interested in working but wanted a
job where he didn’t have to go to meetings or tell people
what to do. The physician noted the veteran appeared
depressed and teared easily. After examination, the
physician diagnosed the veteran has having PTSD with moderate
to severe symptoms and severe dysthymia. He stated that the
veteran’s highest level of functioning in the past year was
felt to be poor with impaired functioning in both social and
economic spheres.
In a letter dated in December 1989, the Personnel Director of
Unified Industries forwarded records showing that in his last
year of employment, the veteran had used 100 hours of sick
leave.
VA outpatient records dated from December 1989 to May 1990
show that the veteran was seen with complaints of sleep
disturbances, nightmares, tearfulness and low energy levels.
Diagnoses included PTSD and depression. Symptoms were
slightly improved with medication.
At the May 1990 hearing at the Albuquerque RO, the veteran
testified that he was unable to function in the management
work he was educated and trained for. He testified that he
thought he might be able to work at a job where it wasn’t
necessary to talk to people, to plan, or to tell people what
to do. He testified that in pursuit of this he enrolled in a
building inspector course at a community college, but
withdrew because of outbursts of anger and inability to be
around or interact with other people.
At a November 1991 VA psychiatric examination, the veteran
reported sleep difficulties, nightmares occurring in spurts,
crying episodes, low energy and difficulty with
concentration. When asked about social life, the veteran
said he stayed to himself. He reported that since he had
moved to New Mexico he had earned $2,000 as a movie extra and
a part-time ski instructor. With respect to his job with
Unified Industries, he said that toward the end of his
employment he always had to force himself to go to work. He
said he felt he could not work where he had to interact with
other people. The psychiatrist noted that the veteran was
somewhat agitated and uncomfortable during the interview and
that his mood was depressed and affect was constricted.
After examination, the assessment was PTSD and major
depression. The psychiatrist commented that there was
serious impairment in social relationships and occupational
functioning and that it was his impression the veteran would
be unable to work at a regular job on a full time basis
because of the psychiatric impairment.
At a July 1993 VA examination by a board of two
psychiatrists, the veteran reported that he had difficulty
associating with people in organized situations and when he
attempted to do so became very anxious and very angry. He
said he doubted his competence and avoided social contacts.
The veteran reported sleep difficulties and frequent
nightmares about Vietnam. It was noted that he became
tearful on minimal, sometimes quite ambiguous, provocation.
He reported continuing intrusive thoughts about Vietnam and
said that on four different occasions he had been in
automobile accidents which occurred while preoccupied with
Vietnam-based thoughts. After examination, the veteran was
diagnosed as having severe, incapacitating PTSD, chronic
dysthymia and episodic major depression. The psychiatrists
stated that the veteran offered one of the most clear-cut
pictures of PTSD that they had encountered. They stated that
the veteran’s level of functioning was markedly impaired from
levels that he was previously able to accomplish and that
this change in functioning was temporally related to his
combat experiences. The also stated that the veteran’s
chronic dysthymia and major depressive episodes were
considered to be a direct result of his PTSD.
At an April 1995 VA psychiatric examination, the veteran
reported that since his last examination he had continued to
have recurrent nightmares which had decreased somewhat in
frequency, as well as continued intrusive thoughts which had
decreased somewhat in frequency and intensity. He also
continued to experience some avoidance and numbing
symptomatology, hyperarousal symptoms, irritability and
anger. The veteran stated that his depressive symptoms had
decreased since approximately the spring of 1994 and he
associated this with his work environment. He reported that
he worked as a ski instructor in a relatively stress free
environment, not being responsible for the outcome of the
skiers or for ordering them around. The veteran emphasized
that he felt that this type of employment was far below his
premorbid capacities for work but that he had learned that
more stressful environments significantly increased his PTSD
and depressive symptoms. After examination, the psychiatrist
diagnosed the veteran as having chronic, severe
incapacitating PTSD. The psychiatrist stressed that the
veteran’s current improvement in his PTSD and lack of
depressive symptoms were directly related to his not being
involved in a more stressful occupational environment. He
noted that the veteran’s current occupational functioning was
far below his capabilities in his premorbid state. The
psychiatrist further commented that he found the veteran to
be open and honest in presenting one of the most clear cases
of PTSD with resulting occupational disability that he had
ever seen in the VA system. He said that he found that the
veteran had done everything within his means to improve his
quality of life as well as to stabilize his emotional state.
On his VA Form 21-8940, Application for Increased
Compensation Based on Unemployability, received in May 1995,
the veteran reported he had four years of college and had
earned a masters degree in management science from the Naval
Postgraduate School. He stated that he had last worked full
time in July 1988 and the most he had ever earned in one year
was $50,000 in 1987. His occupation during that year was
manager of Pacific operations for the company. He was
unemployed from 1988 to 1990. He reported that in 1989 and
1990 he attended a community college seeking a building
inspector certificate, but withdrew because of adjustment
problems. The form shows that the veteran started working as
a ski instructor in 1990 and in the twelve months prior to
May 1995, he had earned $3,300.
Under the Rating Schedule, the evaluation of the veteran’s
PTSD turns on the severity of his overall social and
industrial impairment. A 30 percent rating is warranted
where there is definite impairment in the ability to
establish or maintain effective and wholesome relationships
with people. The psychoneurotic symptoms result in such
reduction in initiative, flexibility, efficiency and
reliability levels as to produce definite industrial
impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411. A 50
percent rating is warranted when the ability to establish or
maintain effective or favorable relationships with people is
considerably impaired and by reason of psychoneurotic
symptoms the reliability, flexibility and efficiency levels
are so reduced as to result in considerable industrial
impairment. Id.
A 70 percent rating is warranted for PTSD when the ability to
establish and maintain effective or favorable relationships
with people is severely impaired and the psychoneurotic
symptoms are of such severity and persistence that there is
severe impairment in the ability to obtain or retain
employment. Id. A 100 percent rating is warranted for PTSD
when the attitudes of all contacts except the most intimate
are so adversely affected as to result in virtual isolation
in the community; there are totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes
associated with almost all daily activities, such as fantasy,
confusion, panic and explosions of aggressive energy,
resulting in profound retreat from mature behavior; or the
veteran is demonstrably unable to obtain or retain
employment. Id. The Board notes that each of the three
criteria for a 100 percent rating under Diagnostic Code 9411
is an independent basis for granting a 100 percent rating.
Johnson v. Brown, 7 Vet.App. 95 (1994).
Review of the evidence outlined above shows that throughout
the period covered by the reported evidence manifestations of
the veteran’s service-connected PTSD have included recurrent
sleep difficulties, nightmares, intrusive thoughts, avoidance
behavior, irritability, outbursts of anger and episodes of
depression. These symptoms have been described by examiners
as severe, chronic and incapacitating. Although 38 C.F.R.
§ 4.130 (1995) dealing with evaluation of psychiatric
disability cautions that examiners’ classifications of the
disease are not determinative of the degree of disability,
the examiners here have provided extensive analyses
supporting their conclusions, and the evidence supports a
finding that the veteran’s service-connected PTSD is severely
disabling, particularly with regard to his ability to
function in a work setting.
With respect to the effect of the veteran’s PTSD on his
ability to obtain or retain employment, the Board notes that
in the context of the award of a total disability rating
based on unemployability due to service-connected
disabilities addressed in 38 C.F.R. §§ 3.340, 3.341 and 4.46
(1995), unemployability means that the veteran is precluded
from obtaining or maintaining substantially gainful
employment consistent with his education and occupational
experience. Also, the VA Adjudication Manual, M21-1,
Paragraph 50.55(8) defines substantially gainful employment
as that which is ordinarily followed by the nondisabled to
earn a livelihood, with earnings common to the particular
occupation in the community where the veteran resides. This
suggests a living wage. Ferraro v. Derwinski, 1 Vet.App.
326, 332 (1991). The ability to work sporadically or obtain
marginal employment is not substantially gainful employment.
Moore v. Derwinski, 1 Vet.App. 356, 358 (1991).
The evidence shows that the veteran’s service-connected PTSD
has prevented him from retaining employment commensurate with
his training and experience, namely work using management
skills. His work as a ski instructor can be described as no
more than marginal employment, as it is essentially part-time
employment providing earnings at a rate far below that earned
by the veteran in work precluded by his service-connected
PTSD. Under the circumstances, the Board concludes that the
requirements for a 100 percent disability rating under
Diagnostic Code 9411 for PTSD have been met.
ORDER
Service connection for cardiovascular disability is denied.
An increased rating for bilateral hearing loss is denied.
An increased rating to 20 percent is granted for ulcer
disease with hiatal hernia and gastritis for the period March
1988 to April 1994, subject to the applicable criteria
governing the payment of monetary benefits.
For the period beginning in May 1994, a rating in excess of
10 percent for ulcer disease with hiatal hernia and gastritis
is denied.
A 100 percent disability rating for PTSD is granted, subject
to the applicable criteria governing the payment of monetary
benefits.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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